Dwarka Prasad Mishra v. Kamalnarain Sharma And Others, Madhya Pradesh High Court, Judgment, Law, casemine.com

Citation Codes

Equivalent Citations

citation codes

Case Number

Misc. Petn. No. 90 of 1964

Advocates

For Petitioner : Shambhunarain Mishra
Y.S. Dharmadhikari
M.V. Tamaskar; For Respondent No. 1 : K.P. Munshi.

Judges

P.V Dixit, C.J
K.L Pandey, J.

Acts

Section 83(1) of the Representation of the People Act, 1951, (hereinafter referred to as the Act)
Rule 94-A of the Conduct of Election Rules, 1961, (hereinafter referred
REPRESENTATION OF THE PEOPLE ACT 1951
Section 45 of that Act. Section 46 of the Specific Relief Act
Rule 94-A of the Conduct of Elections Rules, 1961,
Order 6, Rule 16 of the Code of Civil Procedure
Section 46 of the Specific Relief Act, 1877,
Section 83(1) by the amending Act of 1961
provisions of Section 83 of the R. P. Act
provisions of Section 81 or Section 82.
Election Commission. Section 83
Sub-section (1) of Section 83
Section 83(1) and Rule 94-A
provisions of Section 83(1).
Section 83(1) and R. 94-A,
INDIAN STAMP ACT 1899
Order 6 Rule 17 C.P.C.,
Section 191 I.P.C.
Section 151, C. P. C,
Section 193 I.P.C.
Section 83 (1) (c)

See more information ...

Smart Summary

Factual and Procedural Background

The petitioner was duly elected to the Madhya Pradesh State Legislative Assembly at a by-election held in May 1963 from the Kasdol constituency. The respondent No. 1, who was defeated, filed an election petition before the Election Commission challenging the petitioner's election and alleging, inter alia, certain corrupt practices. The respondent No. 1 filed a paper styled as an "affidavit" along with the election petition.

The petitioner raised a preliminary objection in his written statement that the proviso to Section 83(1) of the Representation of the People Act, 1951 required that allegations of corrupt practice in an election petition be accompanied by an affidavit in the prescribed form sworn before an officer specified by Rule 94-A (a First Class Magistrate, a Notary, or a Commissioner of Oaths). It was alleged that the document filed by respondent No. 1 had not been sworn before any such officer but before the Clerk of Court of the District Judge, Jabalpur, and hence was defective.

The Election Tribunal at Raipur framed preliminary issues (including Issue No. 18 and Issue No. 20) addressing the validity of the affidavit and whether the alleged corrupt practices were duly supported by an affidavit. The Tribunal found the affidavit defective as not sworn before the authority specified by Rule 94-A, but held that on that ground alone the petition could not be dismissed. The Tribunal also concluded, on the material then before it, that prima facie the alleged acts of corrupt practice appeared to be supported by the affidavit.

On 5 November 1963 respondent No. 1 applied to file a fresh affidavit and subsequently (at the hearing) altered his prayer to ask that the fresh affidavit be treated in substitution for the original. By order dated 30 November 1963 the Tribunal permitted respondent No. 1 to file a fresh affidavit in substitution.

The petitioner then presented an application dated 14 February 1964 asking the Tribunal to record findings on (a) the effect of the Tribunal's conclusion that the original affidavit was not sworn before the prescribed authority, and (b) whether the original affidavit was properly stamped under the Indian Stamp Act, 1899 — i.e., whether, in the absence of a valid affidavit at the time of presentation, the allegations of corrupt practices could be inquired into. The Tribunal dismissed that application by order dated 24 February 1964, directing that review under Order 47, CPC would be the remedy if any error existed.

The petitioner filed the present application under Articles 226 and 227 of the Constitution seeking certiorari to quash (a) the Tribunal's order of 30 November 1963 (permitting filing of substitute affidavit), and (b) the order of 24 February 1964 (dismissing the petitioner's 14 February 1964 application), and seeking a direction restraining the Tribunal from proceeding with trial and investigation into corrupt practices not supported by a proper affidavit.

Legal Issues Presented

Whether the proviso to Section 83(1) of the Representation of the People Act, 1951 (requiring that allegations of corrupt practice in an election petition be accompanied by an affidavit in the prescribed form) and Rule 94-A (specifying before whom that affidavit must be sworn) are mandatory or merely directory.
If the proviso and Rule 94-A are mandatory, what is the effect of non-compliance (specifically, an affidavit not sworn before an authority specified in Rule 94-A) on the allegations of corrupt practices in an election petition and on the Tribunal's jurisdiction to inquire into such allegations?
Whether the Election Tribunal had the power to cure the omission (non-compliance at the time of presentation) by permitting the filing later, before the Tribunal, of a fresh affidavit in the prescribed form.
Whether the Tribunal erred in refusing to decide the petitioner's 14 February 1964 application seeking a determination of the legal effect of the defective (or absent) affidavit, and whether its orders of 30 November 1963 and 24 February 1964 should be quashed.

Arguments of the Parties

Petitioner's Arguments (Appellant)

The proviso to Section 83(1) is mandatory and obliged respondent No. 1 to file an affidavit in the prescribed form at the time of presenting the election petition to the Election Commission.
Because respondent No. 1 failed to have the affidavit sworn before an authority specified in Rule 94-A, the petition was ineffectual so far as allegations of corrupt practices were concerned — those allegations were unsupported (non est) and could not be inquired into by the Tribunal.
The Tribunal had no power to cure the non-compliance by permitting respondent No. 1 to file a proper affidavit subsequently and then proceed to try or investigate the alleged corrupt practices.
The petitioner's application dated 14 February 1964 properly sought clarification on these points; it did not amount to contempt and the Tribunal's adverse comments were unjustified.

Respondent No. 1's Arguments (Respondent)

The respondent had filed an affidavit in the prescribed textual form along with the election petition; although it had not been sworn before a First Class Magistrate, Notary or Commissioner of Oaths, it had been sworn before the Clerk of Court of the District Judge, Jabalpur, who could take affidavits under the Code of Civil Procedure.
The proviso to Section 83(1) and Rule 94-A were directory, not mandatory; any defect in the original affidavit could be cured by permitting a fresh affidavit to be filed before the Tribunal.
The Tribunal's order permitting the filing of a fresh affidavit (as substitution) was therefore proper and cured any irregularity; the petitioner's complaint about the Tribunal not adjudicating the precise effect had lost practical importance in light of the Tribunal's leave to file a fresh affidavit.
The respondent relied on a number of precedents (cited to the Court) said to support the view that defects could be cured and that dismissal was not the necessary consequence of such non-compliance.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court in This Opinion
Jagan Nath v. Jaswant Singh & Others, AIR 1954 SC 210 (9 ELR 231)	Discussed in relation to consequences of non-compliance with procedural requirements in election law.	The Court held the observations were distinguishable and did not mean absence of an express statutory consequence automatically renders a requirement directory; the precedent did not compel the proviso here to be read as directory.
Ch. Subha Rao v. Member, Election Tribunal, Hyderabad, CA No. 971 of 1963 (AIR 1964 SC 1027)	Relied upon by respondent to support permitting proceedings despite procedural defects.	The Court found it distinguishable by the nature of the requirement there and did not accept it as governing the present mandatory/directory question.
Amichand v. Pratap Singh, 1963 MPLJ 533 : AIR 1964 Madh. Pra. 23	Cited for analogy that defects might be cured by subsequent affidavit.	The Tribunal relied on this decision to permit filing a fresh affidavit; the Court considered it not decisive for the present question and distinguished it.
Husain Kamil v. Ram Sewak, AIR 1964 All 86	Authority cited by respondent among other High Court decisions.	Not treated as controlling; the Court reviewed similar High Court decisions and distinguished them on facts and issues actually decided.
Bhaskararao v. C.V.K. Rao, AIR 1964 Andh Pra 77	Held in that case that a defect as to the person before whom affidavit was sworn was a formal defect, curable by filing affidavit later.	The Court disagreed with the reasoning that such a defect is merely formal and curable; it held the prescribed person before whom an affidavit is sworn is essential for the affidavit's validity under Rule 94-A.
Mahesh Prasad v. Manjay Lal, AIR 1964 Pat 53	Considered whether form of affidavit was essential versus directory; held form not necessarily of the essence.	The Court noted the Patna decision inclined to treat the requirement of an affidavit as essential but its prescribed textual form as directory; the present Court declined to accept that the authority requirement in Rule 94-A is merely formal.
Hari Vishnu v. Alimad Ishaque, 1955-1 SCR 1104 : AIR 1955 SC 233	Principles for deciding whether statutory provisions are mandatory or directory; language 'shall' is not conclusive.	Cited for the general principle that mandatory/directory status depends on legislative intent, context and purpose; the Court applied those criteria here and found the proviso mandatory.
Banwarilal v. State of Bihar, AIR 1961 SC 849	Emphasizes consideration of words used, scheme of statute, intended public benefit and danger from contravention.	Relied upon to support the Court's approach that the proviso must be construed in its statutory context and for the protective purpose it serves.
Collector, Monghyr v. Keshav Prasad, AIR 1962 SC 1694	Rule that mandatory/directory character depends on purpose and context, not just presence/absence of specified consequences.	Quoted to reject the argument that absence of a specific sanction in the Act makes the proviso directory; the Court applied this principle to hold the proviso is mandatory despite lack of express statutory consequence.
P. K. Banerjee v. L. J. Simonds, AIR 1947 Cal 307	Calcutta High Court decision treating mandatory affidavit filing (Specific Relief Act s.46) as mandatory.	Used by analogy: where statute prescribes affidavit as condition precedent to a remedy, courts have held the requirement mandatory; the Court relied on this analogy to support the mandatory reading of the proviso.
Suryaprakash Weaving Factory v. Industrial Court, Bombay, AIR 1950 Bom 206	Bombay High Court held statutory affidavit requirement mandatory under Specific Relief Act.	Served as additional analogue to demonstrate Parliament may require an affidavit as a mandatory condition for invoking a statutory remedy.
Balwan Singh v. Lakshmi Narain, AIR 1960 SC 770	Supreme Court held Tribunal may strike out particulars of corrupt practice if particulars are vague and petitioner fails to amend after opportunity.	The Court invoked this decision to show the Tribunal has power to strike out corrupt practice allegations in appropriate circumstances, implying that where the proviso is mandatory and absent, striking out is the consequence.
Satish Kumar's case, AIR 1963 Raj 150	Referred to by the Tribunal in permitting a fresh affidavit.	The Tribunal relied on this case for permitting substitution by a fresh affidavit; the Court did not treat it as determinative for the mandatory/directory issue here.
Chengalraya v. Pattabhi, AIR 1964 Andh Pra 164	Held provisions of Section 83 not mandatory; omission to file affidavit along with petition not fatal.	The Court reviewed and rejected the reasoning in Chengalraya as unsatisfactory for present facts, and distinguished it from the conclusion reached here that the proviso and Rule 94-A are mandatory.
AIR 1963 Raj 157 (Rajasthan High Court decision)	Considered a case where affidavit filed was defective in form and Tribunal allowed fresh affidavit; Court held dismissal unnecessary when substantial compliance existed.	The present Court found this decision concerned form and substantial compliance, not the question whether no affidavit at all (or an affidavit sworn before wrong person) is effective; it declined to treat it as controlling here.
R. v. Bishop of Oxford, 1879-4 QBD 245; Julius v. Bishop of Oxford, 1880-5 AC 214	English authorities on statutory construction concerning mandatory vs directory enactments and avoidance of construing clauses as superfluous.	Cited to support the maxim that statutes should be construed to give effect to every clause and to determine legislative intent; applied in reasoning that the proviso should not be treated as surplusage.

Court's Reasoning and Analysis

The Court proceeded by close textual and purposive interpretation of the proviso to Section 83(1) read with Rule 94-A and the form laid down by Form 25. Key steps in the Court's analysis were:

Construction of the proviso: The proviso requires that whenever an election petition alleges any corrupt practice, the petition "shall also be accompanied by an affidavit in the prescribed form" in support of such allegations and particulars. The Court emphasized that the words "the petition shall also be accompanied by an affidavit" reasonably mean the affidavit must be filed at the time of presentation of the election petition before the Election Commission.
Purpose and protective aim: The Court addressed the object of the proviso — to prevent wild, reckless and unfounded allegations of corrupt practice and to protect the person against whom such allegations are made. Because allegations of corrupt practice are quasi-criminal in nature, the requirement to swear to particulars on oath safeguards the accused and enables prosecution under the Penal Code (Section 193/191 I.P.C.) if falsehoods are asserted.
Principles on mandatory vs directory: The Court recited established canons: no universal rule exists; one must consider the scope, object and importance of the provision in the statutory scheme. The use of "shall" is not decisive; absence of an express sanction is not conclusive. Authorities such as Hari Vishnu and Collector, Monghyr were cited to outline the analytical framework.
Distinction from verification under Section 83(1)(c): Respondent argued that verification under 83(1)(c) and penal provisions (Section 193 IPC) sufficed. The Court rejected that approach, explaining the proviso was a purposeful addition to curb unfounded allegations and could not be treated as surplusage; verification alone was inadequate to serve the protective function the proviso aimed at.
The essentiality of swearing before the prescribed authority: Rule 94-A prescribes that the affidavit be sworn before a First Class Magistrate, Notary or Commissioner of Oaths. The Court held such nomination of a particular authority is essential; an affidavit sworn before an authority not prescribed (here, the Clerk of Court) is not an affidavit in the eye of the proviso and R.94-A for the purposes of invoking Tribunal jurisdiction on corrupt practice allegations.
Rejection of Tribunal's "formality" view: The Tribunal had treated the defect as irregular or formal and remedial by permitting a substitute affidavit. The Court concluded that the Tribunal misconceived the petitioner's objection: the objection was not to the textual content but to the absence of a legally valid affidavit at the time of presentation. The Tribunal erred in allowing the filing of a substitute affidavit because the proviso and Rule 94-A are mandatory.
Consequence of mandatory non-compliance: Given the mandatory character, the Court held that if no valid affidavit as required by the proviso accompanies the petition, the Tribunal cannot inquire into allegations of corrupt practice. Those allegations must be treated as incapable of being tried; the Tribunal lacks jurisdiction to try issues arising solely from such allegations. The Court also observed the Tribunal retains power to determine which averments properly amount to allegations of corrupt practice and which do not; that determination must be made consistently with the Court's interpretation.
Treatment of precedents and High Court decisions: The Court reviewed multiple decisions relied upon by respondent and the Tribunal (including High Court cases from Patna, Andhra Pradesh, Rajasthan, Madhya Pradesh etc.) and in most instances distinguished or disagreed with their reasoning when relied upon to treat the authority requirement as merely formal or curable. The Court underscored that facts and the precise nature of the statutory requirement controlled each decision's relevance.
Procedural fairness and Tribunal conduct: The Court criticized the Tribunal's intemperate remarks about the petitioner's 14 February 1964 application, holding that the application merely sought resolution of undecided points and did not amount to contempt; the Tribunal showed "injudicious sensitivity" in its comments.

Holding and Implications

Holding:

1. The proviso to Section 83(1) of the Representation of the People Act, 1951, and the requirement under Rule 94-A that the supporting affidavit be sworn before a First Class Magistrate, a Notary, or a Commissioner of Oaths are mandatory.

Reasoned consequences and direct implications:

The paper filed by respondent No. 1, though in the textual form of Form 25, was sworn before the Clerk of Court of the District Judge and not before an authority prescribed by Rule 94-A; therefore it was not an affidavit "in the eye of the law" for the purposes of the proviso and Rule 94-A.
Because the requirement is mandatory and there was no valid affidavit at the time of presentation, the Tribunal had no jurisdiction to inquire into or try any issues raised solely by the allegations of corrupt practice contained in the election petition; such allegations must be treated as incapable of being inquired into unless the statutory requirement is met in the manner required at presentation.
The Tribunal erred in permitting respondent No. 1 to file a fresh affidavit in substitution and in refusing to deal substantively with the petitioner's application dated 14 February 1964 concerning the legal effect of the defective affidavit.
The orders of the Election Tribunal dated 30 November 1963 (granting leave to file a fresh affidavit) and 24 February 1964 (dismissing the petitioner's application of 14 February 1964) are quashed.
The Election Tribunal is directed to determine, in the light of this decision, which averments in the election petition constitute allegations of corrupt practice and therefore cannot be enquired into because of respondent No. 1's failure to file a valid affidavit in conformity with the proviso to Section 83(1) and Rule 94-A.

Ancillary orders: The petitioner was awarded costs of the application; counsel's fee fixed at Rs. 150; and any outstanding amount of security deposit was ordered to be refunded to the petitioner.

The opinion explains its reasoning and distinguishes several contrary High Court decisions; those distinctions are based on statutory construction, the protective purpose of the proviso, and the essential nature of swearing before the prescribed authority. The Court's holding directs the Tribunal to give effect to this interpretation in deciding which allegations of corrupt practice (if any) remain triable.

Show full summary ...

Dwarka Prasad Mishra v. Kamalnarain Sharma And Others

1. In this application under Articles 226 and 227 of the Constitution, the question for consideration arises, upon what the Election Tribunal, Raipur, determined in regard to a preliminary objection of the petitioner to the election petition filed by the respondent No. 1 challenging the petitioner's election to the State Legislative Assembly from Kasdol constituency.

2. The relevant facts are these. The petitioner was; duly etected to the M. P. State Legislative Assembly at a bye-election held in May rg63 from Kasdol constituency. The respondent No. 1, who was defeated at the election, filed an election petition praying that the petitioner's election be declared void as the petitioner was guilty inter alia of having committed certain corrupt practices enumerated in the petition. To support the allegations of corrupt practices and the particulars thereof the respondent No. 1 filed an 'affidavit' along with the election petition. In his reply to the petition, the. applicant raised the preliminary objection that the proviso to Section 83(1) of the Representation of the People Act, 1951, (hereinafter referred to as the Act) required that if allegations of any corrupt practices are made in an election petition then the petition should be accompanied by an affidavit in the prescribed form in support of the allegation of corrupt practice or practices and the particulars thereof; that this provision was mandatory; that the affidavit filed by the respondent No. 1 was not in the form prescribed by Rule 94-A of the Conduct of Election Rules, 1961, (hereinafter referred to as the Rules) in that it was not sworn before a Magistrate at the first class or a notary or a Commissioner of Oaths; that the non-compliance of Rule 94-A rendered the petition ineffective and liable to be dismissed under Section 90(3) of the Act; and that in any case the allegations of corrupt practices in the petition were liable to be struck out as they were not supported by any affidavit in conformity with the proviso to Section 83(1) and Rule 94-A. On this objection, the Tribunal framed the following preliminary issues:

"No. 18. Whether the affidavit filed by the petitioner in support of his petition is bad in law, as not properly sworn before a competent officer duly authorised to attest and authenticate an affidavit and does not comply with the provisions of Section 83 of the R. P. Act and the rules made thereunder? If so, whether the petition is liable to be dismissed on this ground?

No. 20. Whether the various alleged acts of corrupt practices mentioned in the petition are duly supported by an affidavit as required Under Section 83(1) of the R. P. Act? If not, what is the effect on this petition?"

On the first of the two issues reproduced above, the Tribunal held that the affidavit filed by the respondent No. 1 was sworn not before any authority specified in Rule 94-A but before the Clerk of Court of. the Court of District Judge, Jabalpur; and that the affidavit was thus defective but on that defect alone the election petition could not be dismissed. The Tribunal further observed that the affidavit, purported to be in the prescribe form, supported the allegations of corrupt practices made in the election petition. In regard to the other issue, the Tribunal stated its finding, thus:

"The petitioner has alleged various acts of corrupt practices against the respondents. They are set forth in the various paragraphs of the petition and in the affidavit filed by the petitioner he has parawise supported the various alleged acts of corrupt practices and their particulars. Nothing was shown as to how, in what manner and to what extent the affidavit purports to omit to support the alleged acts of corrupt practices and the particulars thereof. In view of the finding given on issue No. 18, if the petitioner seeks leave to file another affidavit and if he is so permitted, then this question will, if necessary be considered. However, for the time being there is. nothing which can lead to the conclusion that prima facie the alleged acts of corrupt practices and the particulars given by the petitioner are not supported by an affidavit."

On 5th November 1963 the respondent No. 1 filed an application for being allowed to file a fresh affidavit in compliance with the proviso to Section 83(1) of the Act and Rule 94-A. That application was stated to be as one made under Section 151, Civil Procedure Code read with Section 90 of the Act, and the prayer made therein by the respondent No. 1 was that the fresh affidavit which he intended to file should be taken as "in addition to the affidavit already filed by him".

At the time of the hearing of that application, the respondent No. 1 however, abandoned this prayer and urged that the new affidavit should be taken as in substitution of the one already filed, and not in addition to it. By its order, dated 30th November 1963, the Election Tribunal granted this prayer of the respondent and permitted him to file a fresh affidavit.

3. Thereafter on 14th February 1964, the petitioner presented an application before the Tribunal stating inter alia that after having reached the finding that the affidavit accompanying the election petition was not sworn before the prescribed authority and was thus not in conformity with the proviso to Section 83(1) of the Act and Rule 94-A and holding that for that reason the election petition could not be dismissed, the Tribunal should have proceeded to decide the effect of that defect in the affidavit on the allegation of corrupt practices made in the election petition, that the second part of issue No. 20 specifically referred to the effect on the election petition of the various alleged acts of corrupt practices mentioned in the election petition not being duly supported by an affidavit as required by Section 83(1) of the Act and further that the Tribunal had also not decided the petitioner's objection that the affidavit accompanying the election petition not having been properly stamped as requited by the Indian Stamp Act, 1899, there did not exist in law any affidavit. The petitioner further said in the application dated 14th February 1064, that:

"..... as this Tribunal has held that the affidavit sworn by the petitioner was not authenticated by a competent authority, the effect would be that the allegations of corrupt practices would not be substantiated by proper affidavit. In that case, the allegations of corrupt practices not supported by an affidavit cannot go to trial. To avoid further complications this respondent (petitioner here) therefore desires to know before preparing for the evidence the findings of this Tribunal on these two vital issues.

"That the decision on these vital issues would go to the root of the case. In case those are decided in favour of this respondent, then he may not be required to adduce voluminous evidence. If those are decided against this respondent, then he will know the actual position which he has to meet. There will not be any necessity of prolonged arguments on these two points as the parties have already made their submissions."

The aforesaid application ended with the prayer that the Tribunal should

"record findings on the two points mentioned in this application at an early date to enable this respondent to take appropriate steps for conduct of the case"

. The petitioner had made this application as one under Section 151, C. P. C,

4. The Tribunal dismissed this application; by an order pronounced on 24th February 1964 expressing the view that all those objections which the petitioner had raised with regard to the validity of the affidavit had been decided; that the objection about the affidavit not bearing proper and sufficient stamps was never raised in the written-statement; and that even if the Tribunal left some matters undecided, then the petitioner's remedy was by way of a review petition under Order 47, C. P. C. and not by an application under Section 151, C. P. C. It seems that before the Tribunal the respondent No. 1 objected to some statements contained in paragraphs 2, 3, 4 and 5 of the petitioner's application, dated the 14th February 1964, and urged that those statements, which criticised the decision of the Tribunal, ordered on contempt of the Court. The petitioner answered this objection by saying that by this application dated 14th February 1964 he only intended to draw the attention of the Tribunal to the fact that certain points had been left undecided and that he did not intend to offer any criticism on the correctness of the decision or the findings of the Tribunal given on 31st October 1963 on certain preliminary issues. On this controversy, the learned Member of the Tribunal first said that as he was holding that the application dated 14th February 1964 was not maintainable, it was not necessary for him to decide whether the statements objected to were "prima facie calculated to constitute a contempt of this Tribunal". He, however, proceeded to refer to certain paragraphs of the application and made the comment that "These passages prima facie do not appear to be indicative of a simple prayer to obtain any decision by this Tribunal, They appear to contain some words which prima facie are not proper". The learned Member also added:

"In the above quoted passages the applicant prima facie appears to have pointed out to this Tribunal some errors of omission which, according to him, have crept in the findings. It may be that amongst so many matters canvassed by either party some were left undecided. There may be reasons, good or otherwise, for not deciding the points which are alleged to have been raised, but the law does not provide a remedy for the correction of those errors but the manner in which the remedy is sought to be availed of does not prima facie appear to be proper and legal...... I, however, desire that respondent No. 1 (petitioner; here) should consider as to whether it is still felt justified by him that the above quoted passages in his application are proper and constitute a legal remedy put forward in a legal manner. If found necessary this Tribunal will suo motu consider the question of the propriety of the manner in which the application has been made."

5. By this application under Articles 226 and 227 of the Constitution, the petitioner now prays that the orders of the Election Tribunal holding that the election petition was not liable to be dismissed even if the affidavit accompanying it was not sworn before the authority specified in Rule 94-A, granting ±o the respondent No. 1 permission to file a fresh affidavit and rejecting his application dated 14th February 1964 be quashed by a writ in the nature of certiorari. It is also prayed that a suitable direction be issued to the Tribunal restraining it from proceeding further with the trial and investigation of the corrup practices alleged in the election petition which have not been supported by a proper affidavit.

6. Before us, Shri Shambhunarain Mishra, learned counsel for the petitioner, did not question the correctness of the decision of the Tribunal that the election petition could not be dismissed for non-compliance with the proviso to Section 83(1) of the Act. He, however, urged that the proviso to Section 83(1) was mandatory and made it obligatory on the part of the respondent No. 1 to file an affidavit in the prescribed form while presenting the election petition before the Election Commission; that his failure to do so rendered the petition ineffectual so far as the allegations of corrupt practices made therein were concerned; that those allegations not having been supported by an affidavit in the prescribed form were non est; that, therefore, there were no allegations of corrupt practices which the Tribunal could enquire into, and that the Tribunal had no power of curing this non-compliance with the proviso by permitting the respondent No. 1 to file a proper affidavit subsequently and of proceeding to try and investigate into the allegations of corrupt practices.

It was said that the Tribunal no doubt decided the question that the failure to file an affidavit in the form prescribed by the proviso to Section 83(1) and Rule 94-A did not entail the dismissal of the petition, but that it did not at all adjudicate on the question whether the omission to file an affidavit in the prescribed form at the time of presenting the election petition had the effect of precluding the respondent No. 1 from raising any issues on the allegations of corrupt practices made by him in the election petition. Learned counsel proceeded to say that the petitioner was within his rights when he, by his application dated 14th February 1964, drew the attention of the Tribunal to the fact that the question of the effect of the omission to file an affidavit in the prescribed form on the allegations of corrupt practices contained in the election petition had not been decided; that there was nothing in that application which could even remotely be regarded as constituting a contempt of the Tribunal; and that the criticism made by the Tribunal of some of the passages in that application was not justified.

7. In reply, Shri Munshi, learned counsel appearing for the respondent No. 1, urged that the said respondent had filed before the Election Commission an affidavit as required by the proviso to Section 83(1) of the Act; that the ugh the affidavit bad not been sworn before any First Class Magistrate or a notary or a Commissioner of Oaths, it had been sworn before the Clerk of Court of the Court of District Judge, Jabalpur, before whom an affidavit could be sworn; that the provisions contained in the proviso to Section 83(1) and Rule 94-A were not mandatory but only directory, and even if the 'affidavit' filed at the time of the presentation of the election petition was not in conformity with the prescribed form and had not been sworn before any of the authorities mentioned in Rule 94-A, the defect could be cured by filing another proper affidavit before the Election Tribunal; that the Tribunal had permitted the said respondent to file a fresh affidavit; and that, therefore, even if the affidavit filed by the respondent No. 1 at the time of the presentation of the election petition was not in order, the complaint of the petitioner before us that the Tribunal had not decided his objection that there being at the time of the presentation of the election petition no affidavit as required by the proviso to Section 83(1) and Rule 94-A, the allegations of corrupt practices made in the election petition were liable to be struck out, had lost all practical importance. To support his argument, learned counsel referred us to the decisions of the Supreme Court in Jagan Nath v. Jaswant Singh & Others, 9 ELR 231 : AIR 1954 SC 210 and Ch. Subha Rao v. Member, Election Tribunal, Hyd. C. A. No. 971 of 1963, D/- 13-1-1964: (AIR 1964 SC 1027), and to the decisions in Amichand v. Pratap Singh, 1963 MPLJ 533: (AIR 1964 Madh Pra. 23); Husain Kamil v. Ram Sewak, AIR 1964 All 86, Bhaskararao v. C.V.K. Rao, AIR 1964 Andh Pra 77 and Mahesh Prasad v. Manjay Lal, AIR 1964 Pat 53.

8. Before dealing with the contentions put forward by learned counsel for the parties, it is necessary to refer to the relevant provisions of the Act. Section 81 deals with the presentation of an election petition before the Election Commission. Section 83 is concerned with the contents of an election petition. It says:

"83. (1) An election petition:

(a) shall contain a concise statement of the material facts on which the petitioner relies;

(b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of such practice; and

(c) shall be signed by the petitioner, and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings:

Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.

(2). Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition."

Rule 94-A of the Conduct of Elections Rules, 1961, is as follows:

"94-A. The affidavit referred to in the proviso to Sub-section (1) of Section 83 shall be sworn before a Magistrate of the first class or a notary or a commissioner of oaths and shall be in Form 25."

Form 25 runs as follows:

"Form 25 Affidavit (See Rule 94-A)

1......the petitioner in the accompanying election petition calling in question the election of Shri / Shrimati ......... (respondent no...... in the said petition) make solemn affirmation/oath and say:

(a) that the statements made in paragraphs ......of the accompanying election petition about the commission of the corrupt practice of ......and the particulars of such corrupt practice mentioned in paragraphs ......... of the same petition and in paragraphs .... .of the Schedule annexed thereto are true to my knowledge;

(b) that the statements made in paragraphs... ......of the said petition about the commission of the corrupt practice of .......and the particulars of such corrupt practice given in paragraphs......of the said petition and in paragraphs ......... of the Schedule annexed thereto are true to my information;

(c)

(d) Etc.

Signature of deponent Solemnly affirmed/sworn by Shri/Shrimati.......

at...... this ...... day. of ...... 196......

Before me.

Magistrate of the first class / Notary / Commissioner of Oaths.

*Here specify the name of the corrupt practice'."

9. The plain meaning of the proviso to Section 83(1) is clearly this: that when in an election petition calling in question any election allegations-of any corrupt practice are made, then the allegations of such corrupt practice and the particulars thereof should be supported by an affidavit in the prescribed form accompanying the petition. The words "the petition shall also be accompanied by an affidavit" mean that the affidavit shall be filed at the time of the presentation of the election petition before the Election Commission. The text of the affidavit, which the respondent No. 1 filed before the Election Commission along with the election petition, was no doubt in the prescribed form. But the affidavit had not been sworn before a First Class Magistrate or a Notary on a Commissioner of Oaths. In his written-statement, the petitioner had expressly taken the objection that as the respondent No. 1 had not complied with the proviso to Section 83(1) and R. 94-A, the election petition was liable to be dismissed under Section 90(3) of the Act or in the alternative the allegations of corrupt practices were liable to be struck out as they were not supported by an affidavit.

Issue No. 18, which the Tribunal framed, covered the petitioner's objection that the election petition was liable to be dismissed because of the defect that the affidavit filed with the election petition had not been sworn before the authority prescribed by Rule 94-A. It did not raise the question of the effect and consequence of the defect in the 'affidavit' if that defect did not entail the dismissal of the election petition. Issue No. 20 was also not so worded as to raise this question specifically. If the Tribunal's observation in its order dated 24th February 1964 that all the questions which the petitioner had raised in regard to the validity of the 'affidavit' and which formed the, subject-matter of issues Nos. 18 and 20 had already been decided is any guide, then it must be taken that in the view of the Tribunal issue No. 20 covered the objection of the petitioner that there being no affidavit as required by the proviso to Section 83 (1) of the Act and Rule 94-A the allegations of corrupt practices made in the election petition were liable to be struck out. But the Tribunal did not by any of its orders passed on 31st October 1963, 30th November 1963 and 24th February 1964, or by any other order, decide the point about the effect of the 'affidavit' accompanying the election petition on the allegations of corrupt practices made therein. The Tribunal expressed no opinion on it while giving on issue No. 18 the finding that the affidavit filed

"purports to be in the prescribed form but is not sworn before the specified authority. However, on this ground alone, the petition is not liable to be dismissed."

The finding recorded by the Tribunal on issue No. 20, which has been reproduced earlier in paragraph 2 of this order, shows that the Tribunal altogether misconceived the petitioner's objection that as the election petition was not accompanied by an affidavit, as required by the proviso to Section 83(1) and Rule 94-A, the allegations of corrupt practice in the election petition were liable to be struck out "as they were not supported by an affidavit." The petitioner's objection was not to the text of the 'affidavit' filed at the time of the presentation of the election petition or to the statements made therein. But it was that as the affidavit had not been sworn before the authority nominated by Rule 94-A there was no affidavit at all in the eye of law, that thus the allegations of corrupt practices made in the election petition were unsupported by any affidavit and that they were consequently liable to be struck out. The finding recorded by the Tribunal on issue No. 20 in no way decided this objection of the petitioner. The Tribunal did not decide this objection even when It took up for consideration the respondent No. 1's application, dated 5th November 1963, for being allowed to file a fresh affidavit in conformity with the proviso to Section 83(1) and Rule 94-A. It granted leave to the respondent No. 1 to file a fresh affidavit expressing the view that "the election petition did accompany an 'affidavit' as required by Section 83 of the Act, which was otherwise 'proper 'excepting as regards the question as to before whom it was to be sworn. No other defect was noticed......... On the analogy of the decision given in Amichand's case, 1965 MPLJ 533 : (AIR 1964 Madh Pra 23) and the view taken in Satish Kumar's case, AIR 1963 Raj 150, I feel that the petitioner can be and should be permitted to file a new affidavit in substitution of the affidavit originally filed by him."

The necessary implication of the decision, of the Tribunal permitting the respondent No. 1 to. file a fresh affidavit is that the Tribunal regarded the requirement of the proviso to Section 83(1) and Rule 94-A as merely directory and not mandatory and further the ught that even if the election petition was not accompanied by an affidavit in the prescribed form, the defect could be cured by filing a proper affidavit at a later stage before the Tribunal itself.

The main question that, therefore, arises for determination in this case is whether the requirement laid down by the proviso to Section 83(1) that where the petitioner alleges any corrupt practice the petition shall be accompanied by an affidavit in the prescribed form in support of the allegations of such corrupt practice and the particulars thereof is mandatory or directory. It is obvious that if it is held that this requirement is mandatory and there must be at the time o4 the presentation of such an election petition an affidavit in the prescribed form along with the petition, then if no such affidavit is filed at the time of the presentation of an election petition before the Election Commission, the omission cannot be cured by permitting the election petitioner to file an affidavit before the Tribunal. If the proviso is mandatory, then an affidavit filed not in the manner or form prescribed by it can have no effect or validity; the proviso has to be obeyed exactly and there can be no question of its being carried out substantially by filing an affidavit subsequently before the Election Tribunal.

10. Now, it is well established that there is no rule of universal application for determining whether a provision in a statute is absolute or directory. The question in each case has to be decided on a consideration of the scope and object of the provision, the importance of the provision: in question in relation to general object intended to be secured by the Act, and considerations of justice and convenience. The use of the word, "shall" is not decisive of the provision being mandatory. So also, the absence of any provision laying down the consequences of the omission to observe a requirement is inconclusive. At the same time, it is well settled that where a statute creates or grants a new right, privilege or immunity, and regulates the manner of its exercise, it must be construed as mandatory. In 'Maxwell on. Interpretation of Statutes' (11th edition), the matter has been put thus at page 364:

"It has been said that no rule can he laid dawn for determining whether the command is to be considered as a mere direction or instruction involving no invalidating consequence in its disregard, or as imperative, with an implied nullification for disobedience, beyond the fundamental one that it depends on the scope and object of the enactment. It may, perhaps, be found generally correct to say that nullification is the natural and usual consequence of disobedience, but the question is in the main governed by considerations of convenience and justice, and, when that result would involve general inconvenience or injustice to innocent persons, or advantage to the se guilty of the neglect, without promoting the real aim and object of the enactment, such an intention is not to be attributed to the legislature. The whole scope and purpose of the statute under consideration must be regarded. The general rule is, that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially.

* * * *

"Where powers, rights or immunities are granted with a direction that certain regulations, formalities or conditions shall be complied with, it seems neither unjust nor inconvenient to exact a rigorous observance of them as essential to the acquisition of the right or authority conferred, and it is therefore probable that such was the indention of the legislature."

In Sutherland's Statutory Construction (3rd edn.), it has been stated at page, paragraph-581, that:

"With respect to the question of mandatory and directory operation as with any question of statutory construction, the primary consideration is that of determining the intent of the legislature. Each case stands pretty much on its own facts, to be determined on an interpretation of the particular language used. Various methods of attacking the problem are employed. One oft-repeated formula is that statutory requirements' that are of the essence of the thing required by statute are mandatory, while the se things which are not of the essence are directory. And it is said that the ordinary meaning of language should always be favoured.

However, all of these criteria are at best highly nebulous concepts. A much more satisfactory approach to the problem is to use, whenever possible, the various aids for determining legislative intent."

Again in the same boob it has been observed in paragraph 5826 (p. 122-123) that

"statutory regulations intended to protect the rights of litigants or of persons accused of crime are mandatory"

, There are several decisions of the Supreme Court in which the matters which have to be taken into consideration for determining whether a statutory provision is directory or mandatory have been indicated. In Hari Vishnu v. Alimad Ishaque, 1955-1 SCR 1104: ((S) AIR 1955 SC 233) Venkatarama Ayyar J., delivering the judgment of the Court, said--

"It is well-established that an enactment in form mandatory might in substance be directory; and that the use of the word 'shall' does not conclude the matter. The question was examined at length in Julius v. Bishop of Oxford, 1880-5 AC 214 and various rules were laid down for determining when a statute might be construed as mandatory and when as directory. They are well-known, and there is no need to repeat them. But they are all of them only aids for ascertaining the true intention of the legislature which is the determining factor, and that must ultimately depend on the context,"

Again, in Banwarilal v. State of Bihar, AIR 1961 SC 849 while pointing out that no general rule can be laid down for deciding whether any particular provision of a statute is mandatory or directory, the Supreme Court emphasized that in order to decide this question

"the Court has to consider not only the actual words used but the scheme of the statute, the intended benefit to public of what is enjoined by the provisions and the material danger to the public by the contravention of the same."

In Collector Monghyr v. Keshav Prasad, AIR 1962 SC 1694, the Supreme Court has laid down that

"the question whether any requirement is mandatory or directory has to be decided not merely on the basis of any specific provision which, for instance, sets out the consequences of the omission to observe the requirement, but on the purpose for which the requirement has been enacted, particularly in the context of the other provisions of the Act and the general schema thereof. It would inter alia depend on whether the requirement is insisted on as a protection for the safeguarding of the right of liberty of person or of property which the action might involve."

11. Coming to the language of the proviso to section 83(1) of the Act, it is clearly in imperative terms. It says that where the petitioner alleges any corrupt practice then the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegations of such corrupt practice and particulars thereof. The effect of the provision that the elaction petition should be accompanied by an affidavit in support of the alleged corrupt practice is that if the person calling in question any election wishes to allege any corrupt practice, then he must make the se allegations and give particulars of the corrupt practice or practices alleged on oath. The reason requiring the allegations of corrupt practice and particulars thereof being made on oath is not far to seek. It is well settled that allegations of corrupt practice in an election petition are quasi criminal in nature. That being so, it is essential, for protecting the rights of the person against whom allegations are made that the person making the allegation must be in a position to swear as regards the truth of the allegations of corrupt practice and the particulars thereof. The intention of the proviso is clearly to restrain the person filing an election petition from making all ports of wild, reckless and unfounded allegations of corrupt practices. It attempts to achieve this purpose by making it certain that the election petitioner does not escape liability under Section 193 I.P.C. for filing a false affidavit in case the allegations turn out to be false and what is more important by preventing any inquiry into the allegations if there is no affidavit to support them.

This intention cannot be carried out unless the person calling in question any election is required to file at the time of the presentation of the election petition an affidavit in support of the allegations of corrupt practices and the particulars thereof. If the allegations are true, then the person making them should at that time be in a position to swear as regards their truth. This requirement is necessary for safeguarding the interest of the person against whom the allegations are made. It is obvious enough that if while making allegations of corrupt practice the election petitioner is not in a position to state on bath that they are true, then not much value can be attached to the se allegations. An affidavit filed subsequent to the making of the allegations and based on knowledge and information of doubtful provenance and collected especially for the purpose of filing an affidavit, can hardly serve the purpose of an affidavit filed along with the election petition itself and have the authenticity attached to an affidavit accompanying the election petition.

11a. Learned counsel for the respondent No. 1 suggested that the proviso to Section 83(1) introduced by the Act of 1961 was only as a supplementary to the provision contained in Section 83(1) (c) requiring that the election petition shall be verified by the election petitioner in the manner laid down in Civil Procedure Code for the verification of pleadings; that a person could be punished under Section 193 I.P.C. for making a false verification; and that, therefore, the proviso could not be read as a mandatory provision on the supposition that its object was to prevent the election petitioner, by the deterrent of being prosecuted for making false evidence, from making reckless and unfounded allegations of corrupt practices. We are unable to accept this argument which in effect asks us to take the view that the proviso is a surplusage. It is no doubt true that section 83 contained the provision about the verification of election petition when the proviso was inserted in 1961, and a false verification renders the election petitioner liable to prosecution for an offence under Section 193 I.P.C. But it has been held in many cases, including the case of Amichand, 1963 MPLJ 533 : (AIR 1964 Madh Pra 23) that the want of verification or a mistake therein is merely an irregularity which does not make the election petition void. The irregularity can be rectified by amending the petition under Order 6 Rule 17 C.P.C., and the election petition cannot be dismissed for non-compliance with Section 83 (1) (c) nor can the Tribunal refuse to raise and try any issue arising out of any of the averments in the petition on the ground that the averments are unverified. The object of requiring that the election petition should be verified is to fix on the election petitioner the responsibility of the statements which it contains and to' afford a guarantee of his good faith. It is to discourage the making of a false or a totally trivial election petition.

It was because Parliament found the provision as regards verification inadequate for presenting a person from making reckless and unfounded allegations of corrupt practices and for precluding the Tribunal from holding a roving enquiry into the se allegations that the proviso was inserted in the Act. The settled canon oil construction of statutes is that

"such a sense is to be made upon the whole as that no clause, sentence or word shall prove superfluous, void at insignificant, if by any other enactment they may all be made useful and pertinent"

(R. v. Bishop of Oxford, 1879-4 Q B D 245 at p. 261 and 'Craies on Statute Law, 6th Edn. P. 105). A, statutory provision cannot be construed so as to make it nugatory or needless if a meaning or purpose could be given to it. The intent of the Legislature behind the proviso is carried out only if it is regarded as making it mandatory that allegations of corrupt practice should be sworn on oath by an affidavit as a condition precedent for invoking the jurisdiction of the Tribunal for the trial of the issues raised by the allegations. The proviso has to be read as meaning that if there is no affidavit as required by it, then the Tribunal cannot enquire into any of the allegations of corrupt practices contained in the election petition.

11b. In our opinion, the object with which the proviso was inserted by Act No. 40 of 1961 in the Representation of the People Act, 1951 would be wholly defeated and the protection afforded by it to the person, against whom allegations of corrupt practices are made, nullified if it were to be held that the requirement that where allegations of corrupt practices are made the petition shall be accompanied by an affidavit in the prescribed form is directory and not mandatory.

12. It is no doubt true that in the Act there is no provision setting out the consequence or consequences of the omission to file an affidavit as required by the proviso at the time of the presentation of the election petition itself. But this omission, as pointed out by the Supreme Court in AIR 1962 SC 1694 is in no way decisive of the proviso being directory. The statement in that case that

"the question whether any requirement is mandatory or directory has to be decided no merely on the basis of any specific provision which, for instance, sets out the consequences of the omission to observe the requirement"

is very significant. It emphasizes that the presence or absence of such a provision is not decisive of the matter whether any requirement is mandatory or directory. Indeed, the 'question whether a provision is mandatory or directory generally arises not when the statute sets out the consequences of non-compliance of a provision, but when it does not do so. Therefore, to say that, inasmuch as there is no provision is the Act laying down the consequences of non-compliance with the proviso, the proviso is directory, is to beg the question.

Learned counsel for the respondent No. 1 sought to suggest that as Section 90(3) of the Act spoke only of the dismissal of an election petition, which did riot comply with the provisions of section 81 or 82, and said nothing about the result of non-compliance with Section 83, therefore, any omission to observe the proviso to Section 83 (1) could not be regarded, as fatal. We are unable to accede to this contention. Section 90(3) of the Act deals only with the dismissal of an election petition which does not comply with the provisions of Section 81 or Section 82. The reason why it does not say anything about the dismissal of an election petition not complying with the proviso to Section 83(1) is that an election petition is not always founded on allegations of corrupt practice alone. The challenge to an election petition is generally on various grounds, including allegations of corrupt practice. The entire petition cannot, therefore, be dismissed if, as required by the proviso, the allegations of corrupt practice are not supported by the requisite affidavit. From the fact that Section 90(3) makes no reference whatsoever to Section 83, it does not at all follow that the proviso is only directory and no penalty of any kind can be incurred for its non-compliance.

On an examination of the language of the proviso, its object and the intent behind it, and having regard to the protection intended to be given to the person against whom allegations of corrupt practices are made, it is clear that the proviso is mandatory and the legislative intent is to require that an election petition containing allegations of corrupt practices shall be accompanied by a valid affidavit and to insist on a strict compliance of the proviso as a pre-requisite for raising any issue on any of the corrupt practices alleged. When the proviso requires that an election petition containing allegations of corrupt practices should be accompanied by an affidavit, the requirement is not a condition precedent for the proper presentation of an election petition under Section 81, so that if no affidavit is filed the election petition cannot "be dismissed under Section. 85 or 90 (3) of the Act. But it is an essential requisite for invoking the exercise of the judicial power of the Tribunal, to whom the petition is referred by the Election Commission, few the trial of the issues raised by the allegations of corrupt practices.

In this connection it would be pertinent to refer to Section 46 of the Specific Relief Act, 1877, which furnishes an instance of a statutory provision making the filing of an affidavit mandatory for invoking the jurisdiction of the High Court under Section 45 of that Act. Section 46 of the Specific Relief Act begins with the words "Every application under Section 45 must be founded on an affidavit of the person injured ....." This requirement has been held to be mandatory by the Calcutta and Bombay High Courts in P.K. Banerjee v. L.J. Simonds, AIR 1947 Cal 307 and Suryaprakash Weaving Factory v. Industrial Court) Bombay, AIR 1950 Bom 206. In AIR 1947 Cal 307 (supra), it has been observed that--

"The remedy in Section 45 is of a prerogative nature and it is given by a statute which, in mandatory and unambiguous terms, by the use of the word 'must' in Section 46, prescribes the condition to be fulfilled by an applicant who seeks to; utilise Section 45. 'The person injured being the applicant, he must fulfil the condition precedent to his application by making the affidavit upon which alone his application can be made.' Unless this statutory condition is observed by the applicant, he has no right to, or to apply for, the statutory remedy."

(Underlining is (here into ' ') ours) So also in AIR 1950 Bom 206 (supra) Chagla C. J., said that the provisions of section 46 are mandatory in then character and non-compliance with the se provisions would result in the petition under Section 45 being dismissed.

13. In the case before us there was non-compliance with the proviso on the part of the respondent No. 1. What he did was to present along with the election petition a paper containing the text of Form-25 signed by him and "sworn by him" before the Clerk of Court of the Court of District Judge, Jabalpur. This was not any affidavit contemplated by the proviso and rule 94-A. The Tribunal, while holding that this document was not an affidavit "sworn" before the authority specified in rule 94-A, formed the view that there was an irregular compliance with rule 94-A. It the thought that the requirement prescribed by the proviso and rule 94-A was a matter of form and not of substance. The Tribunal observed: -

" if a petitioner swears an affidavit which purports to be in the prescribed form, but on account of some irregular compliance of the provisions of the Act, swears it before an officer who is otherwise authorised to administer oaths on affidavit under the Code of Civil Procedure, but does not swear it before the authority specified under the Rules, then it cannot be alleged that the irregular compliance should be visited with such consequences as a dismissal of the petition without its regular trial."

In taking this view, the learned Member of the Tribunal altogether overlooked the fundamental fact that in the very definition of 'affidavit' it is inherent that it should be sworn before the person having authority to administer oaths or affirmation. This is essential to constitute the paper an 'affidavit'. Until an affidavit is properly sworn there is merely a paper containing the statements of the party. When the statute requires that the affidavit shall be sworn before a particular authority, then for the validity of the affidavit it is essential that it must be sworn or affirmed before that authority. When by a statutory provision a particular authority is nominated for the swearing of an affidavit in any matter, then the effect is that no authority other than the one prescribed has any jurisdiction to take an affidavit in the matter. It is easy to see that if the affidavit is not sworn before the prescribed authority but is sworn before some other authority who, has no jurisdiction in the matter, then, if that affidavit is false, a prosecution Under Section 191 I.P.C. in respect of that affidavit cannot be sustained.

Section 191 I.P.C., inter alia, says that--

"Whoever being bound by law to make a declaration upon any subject makes any statement which is false, and which he either knows or believes to be false or does not believe to be true is said to give false evidence."

When a statute makes it incumbent upon a person to make a declaration upon any subject in a certain manner, then for the purposes of Section 191 I.P.C.. it is essential that the declaration must be in that manner. The whole purpose of ensuring that a person does not make a false affidavit in support of the allegations of corrupt practice and that if he does he should be liable to prosecution, would be frustrated if an affidavit sworn not before the authority prescribed by R. 94-A but by some other authority is regarded as good for the said rule and for the proviso. The requirement that the affidavit must be sworn before the authority prescribed by Rule 94-A is an essential requirement and an affidavit sworn before any other authority cannot be regarded as an affidavit at all for the purposes of the proviso and R.94-A. In our opinion, the document, which the respondent No. 1 sworn before the Clerk of Court and which he filed along with the election petition, must be regarded as it were non est and there was no affidavit in the eye of law for I the purposes of the proviso and R. 94-A.

The question whether an affidavit filed along with the petition and sworn before the authority prescribed by Rule 94-A but which is not in the prescribed form can be regarded as a valid one for the purposes of the proviso and Rule 94-A does not arise for determination in this case, and we express no opinion on the point whether the requirement of the text of the affidavit being in the prescribed form is or is not an essential requirement. But there can be no doubt that so far as the requirement of an election petition containing allegations of corrupt practice being accompanied by an affidavit is concerned, that is mandatory as also the requirement that the affidavit must be sworn before the prescribed authority. These requirements being mandatory, the Tribunal has no power to permit the election petitioner, who failed to file an affidavit as required by the proviso and Rule 94-A at the time of the presentation of the election petition before the Election Commission, to file an affidavit subsequently in the form prescribed by Rule 94-A.

In the present case, there was manifestly no affidavit in the eye of law as required by the proviso and Rule 94-A. The Tribunal had to determine the effect of this non-compliance on the allegations about corrupt practices contained in the election petition. It failed to do so and instead permitted the respondent to file a fresh affidavit contrary to the proviso. As already observed by us, the necessary implication of the order of the Tribunal permitting the said respondent to file a fresh affidavit is that the Tribunal regarded the requirement of the proviso and rule 94-A as merely directory and not mandatory, if, as we think, the requirement of an election petition containing allegations of corrupt practice being accompanied by an affidavit sworn before the prescribed authority is mandatory, then it is inevitable for us to say that the consequence of the failure to carry out this requirement is that the allegations about the corrupt practices must be struck out and there can be no enquiry on any issue raised by the se allegations. According to the decision of the Supreme Court in Balwan Singh v. Lakshmi Narain, AIR 1960 SC 770, the Tribunal has the power to strike out the plea of corrupt practices if the particulars of corrupt practices alleged are found by the Tribunal to be vague and if the election petitioner even after an opportunity being given by the Tribunal fails to apply for leave to amend and amplify the particulars of the corrupt practices alleged. If the Tribunal has the power to strike out the allegations of corrupt practice in such a matter as the vagueness of the particulars of corrupt practice the decision of which depends on the discretion and judgment of the Tribunal, then a fortiori when the proviso to Section 83 (1) requires in imperative terms that the allegations of corrupt practice and particulars thereof should be supported by an affidavit, the allegations cannot but be struck out if there is no compliance with the proviso.

14. Turning now to the authorities cited by the learned counsel for the respondent No. 1, it must first be stated that on the topic of the matters to be taken into consideration for determining whether a statutory provision is mandatory or directory, there is a superfluity of authority. But no case holding that a particular statutory provision is directory or mandatory can be of any guide in the determination of the question whether another statutory provision is imperative or directory. Each case is distinguishable on its own facts and on the language of the particular provision considered therein and on the scheme of the Act in which it occurs. But so far as the principles to be followed for determining whether a statutory provision is directory or mandatory are concerned, there is no conflict. These principles have been followed in all cases where the question for determination was whether any statutory provision is mandatory or directory.

No assistance can, therefore, be derived from the decisions in 1963 MPLJ 533: (AIR 1964 Madh Pra 23) and AIR 1954 SC 210: 9 ELR 231. In the former case, the' question that was considered was whether an election petition can be dismissed for not complying with Section 83(1) (c) dealing with the verification of the election petition. The case of Jagan Nath, AIR 1954 SC 210: 9 ELR 231 related to the non-compliance of the provisions of the Act relating to the joinder of parties. Learned counsel for the respondent No. 1 laid considerable stress on certain observations of the Supreme Court in the case of Jagan Nath, AIR 1954 SC 210: 9 ELR 231 and contended that as the Act did not set out the consequences of non-compliance of the proviso to Section 83(1), the proviso could not be construed as mandatory. The observations of the Supreme Court, on which the learned counsel placed reliance, run thus--

"The general rule is well settled that the statutory requirements of election law must be strictly observed and that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and that the Court possesses no common law power. It is also well settled that it is a sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law. None of these propositions, however, has any application if the special law itself confers authority on a Tribunal to proceed with a petition in accordance with certain procedure and when it does not state the consequences of non-compliance with certain procedural requirements laid down by it."

As we read these observations, it seems to us that they mean that the statutory requirements of election law must be strictly observed; but if the election law itself confers authority on the Tribunal to proceed with the petition in accordance with certain procedure and does not state the consequence of non-compliance with certain procedural requirements, then it would be a matter for consideration whether the procedural requirement is mandatory or directory. The last sentence in the above observation cannot be read as meaning that if the election law does not state the consequence of non-compliance with a certain requirement, then it must be regarded as directory. The decision of the Supreme Court in CA No. 971 of 1963 D/- 13-1-1964: (AIR 1964 SC 1027) is also distinguishable by the nature of the requirement which was held to be directory in that case.

15. In the other cases cited by the learned counsel for the respondent No. 1, namely AIR 1964 All 86; AIR 1964 Andh Pra 77, AIR 1964 Pat 53 and AIR 1963 Raj 157 the question whether proviso to Section 83(1) is mandatory or directory was no doubt considered, but in each case it was in relation to the objection that the election petition was liable to be dismissed for non-compliance with the proviso. In AIR 1964 All 86 an objection was raised before the Allahabad High Court in an appeal from the final decision of the Election Tribunal of Lucknow that the election petition filed by the appellant was not maintainable at all inasmuch as it contained allegations about corrupt practice and the petition was not accompanied by an affidavit as required by the proviso. In that, case, the charges of corrupt practice on the part of one of the contesting respondents had actually been withdrawn during the course of the trial by the Tribunal with the result that no issue was framed in respect of the same. On a consideration of Sections 85 and 90(3) of the Act, the Allahabad High Court held that the election petition could not be dismissed by the Tribunal if it did not comply with the provisions of Section 83(1).

The learned Judges of the Allahabad High Court then proceeded to consider the question whether the proviso to Section 83(1) was mandatory or directory and expressed the view that it was not mandatory inasmuch as the Act did not prescribe a penalty for the non-obedience of the proviso. With all respect to the learned Judges of the Allahabad High Court, we do not agree with their view that the proviso to Section 83(1) is not mandatory. It is dear that in the Allahabad case the charges of corrupt practice having been withdrawn and not tried at all by the Tribunal, no question arose as regards the effect of failure on the part of the election petitioner to file an affidavit as required by the proviso on the allegations of corrupt practice made by him. The question whether an election petition could be dismissed for failure to comply with the proviso turned on sections 85 and 90 (3) of the Act and it was wholly unnecessary to consider in that connection whether the proviso was mandatory or directory. From what we have said above, it is clear that while we agree with the view of the Allahabad High Court that an election petition cannot be dismissed for non-compliance with the proviso we do not find ourselves in agreement with the view that the proviso is not mandatory.

16. In AIR 1964 Pat 53 an affidavit was filed before the Election Commission along with petition, but it was not in the prescribed form. An objection was, therefore, raised before the Patna High Court that the affidavit not being in the prescribed form was no affidavit in the eye of law and the allegations of the commission of corrupt practices made in the election petition must be struck out. The Patna High Court, after noticing the principles on which the question whether a statutory provision is mandatory or directory is determined, observed--

"Reading the proviso to Sub-section (1) of Section 83 of the Act in the light of the principles of interpretation of statutes stated above, it seems that the substance and the matter of the essence embodied in the proviso is that, when allegations of corrupt practices are made in the election petition, it must be accompanied by an affidavit, but. the requirement of its being in the prescribed form. is not of the essence and is directory. Before the amending act 27 of 1956, for non-compliance with the provisions of section 83, the penalty provided in the Act was dismissal of the application by the Election Commissioner under Section 85 or by the Election Tribunal under Section 90(3) of the Act. But no such consequence is provided in the Act as stands now after the amendment of 1956. It is, therefore, clear that even for the non-filing of the affidavit along with the election petition as required by the proviso in question, the whole of the petition cannot be dismissed ia limine. It may well be that in that event the allegations of corrupt practices in the petition have got to be struck out as being unnecessary under Order 6, Rule 16 of the Code of Civil Procedure or some other consequences may follow even the ugh not specifically provided for in the Act. I am not called upon to decide and express any opinion in this case in regard to such a situation. But I have no doubt in my mind that, if the election petition is accompanied by an affidavit, the allegations of corrupt practice made in the election petition cannot be struck out merely because the Affidavit is not in the prescribed form or is a defective one."

It will be noted from the above observations that the learned Judges of the Patna High Court were inclined to think that the requirement that when allegations of corrupt practices are made in an election petition it must be accompanied by an affidavit was essential but the requirement of its being in the prescribed form was directory. The question whether for the non-filing of the affidavit along with the election petition as required by the proviso to Section 83(1), the allegations of corrupt practices in the petition could be struck out did not arise in the Patna case and the learned Judges expressly said in so many words that they were not expressing any opinion on that question. They however, said that

"it may well be that in that event the allegations of corrupt practices in the petition have got to be struck out"

. What was held in the Patna case was that the allegations of corrupt practices contained in an election petition cannot be struck out merely because the affidavit is not in the prescribed form. It has already been pointed out earlier that the question whether an affidavit, along with an election petition, and sworn before the authority prescribed by Rule 94-A but which is not in the prescribed form, can be regarded as a valid one for the purposes of the proviso and rule 94-A does not arise for determination in this case.

17. In AIR 1964 Andh Pra 77 an affidavit was filed along with the election petition presented before the Election Commission but it was not sworn before a First Class Magistrate or a notary or a Commissioner of Oaths, but had been sworn before an Advocate. The election petitioner, however, was allowed by the Tribunal to file an affidavit in the proper form. In an appeal from the final decision of the Election Tribunal, it was urged before the Andhra Pradesh High Court that the proviso to Section 83(1) made it obligatory on the part of the election petitioner to file an affidavit in the prescribed form and non-compliance with the proviso rendered the petition ineffective and it was not within the power of the Tribunal to regularise the petition by permitting the filing of a proper affidavit subsequently and to proceed to try the petition on its merits, and that, therefore the election petition should have been dismissed because of the said defect. The Andhra Pradesh High Court held that having regard to the provisions of Sections 85 and 90(3) of the Act, the election petition could not be dismissed if it did not comply with the provisions of the proviso to Section 83(1).

The learned Judges of the Andhra Pradesh High Court did not consider the question whether the averments relating to corrupt practices contained in the election petition should be struck out when no affidavit was filed as required by the proviso as in their opinion, the Tribunal in that case had held that the respondent in the appeal before the Andhra Pradesh High Court had not succeeded in establishing the fact that the appellant was guilty of corrupt practices. The learned Judges observed--

"The question whether the averments relating to corrupt practices should be struck out or not has no practical importance in this case having regard to the fact that it was found by the Tribunal that the respondent had not succeeded in making out his case that the appellant was guilty of corrupt practices."

The filing of an affidavit before the Tribunal was upheld by the Andhra Pradesh High Court on the ground that the defect in the affidavit because of its having been sworn before an Advocate and not before the prescribed authority was only a formal defect which could be cured.

In support of this view, reliance was placed by the learned Judges of the Andhra Pradesh High Court on the decision of the Supreme Court in AIR 1960 SC 770. It has already been pointed out that the requirement of rule 94-A that the affidavit should be sworn before the prescribed authority is the very essence of the affidavit and cot merely a formality. There is no analogy between the failure to furnish full particulars of corrupt practices and the defect of the affidavit act having been sworn before the prescribed authority. That being so, it seems to us difficult to hold that inasmuch as the particulars of corrupt practices can be amended or amplified on the basis of the Supreme Court's decision in Balwan Singh's ease, AIR 1960 SC 770 (supra), so also the defect of an affidavit not having been sworn before the prescribed authority can be cured. In the case of AIR 1964 Andh Pra 77 (supra) it has also been observed that a provision of a statute is not mandatory unless non-compliance with it is made penal. This proposition runs counter to the pronouncement of the Supreme Court in AIR 1962 SC 1694 that the question whether any requirement is mandatory or directory cannot be decided merely on the basis that there is a specific provision setting out the consequences of the omission to observe the requirement. What we have said earlier is sufficient to indicate that we do not agree with the view expressed in the Andhra Pradesh case that if an affidavit is not sworn before the prescribed authority, then that defect is a formal defect which can be cured by filing subsequently a proper affidavit

18. There is also another decision of the Andhra Pradesh High Court in Chengalraya v. Pattabhi, AIR 1964 Andh Pra 164 holding that the provisions of section 83 are not mandatory and the' non-compliance with the requirements of the proviso to Section 83(1) by way of omission on the part of the petitioner to file an affidavit along with his election petition, as required by the proviso, is not fatal to the maintainability of the petition. In that case, the Tribunal had dismissed the election petition on the ground that it was not validly presented inasmuch as the requirement of the proviso to Section 83(1) had not been complied with. The Tribunal also dismissed the election petitioner's application for being allowed to file an affidavit contemplated by the proviso. The learned Judges of the Andhra Pradesh High Court deciding the case of Chengalraya. AIR 1964 Andh Pra 164 (supra) followed the decision in AIR 1964 Andh Pra 77.

They based their conclusion on the reasoning that an affidavit under the proviso and the verification of the petition under Section 83 (1) (c) stood on the same footing in so far as Section 191 I.P.C. was concerned; that the verification of the election petition was more important than the filing of an affidavit under the proviso; that the omission to verify an election petition was a mere irregularity which could be cured by allowing it to be rectified by subsequent amendment and the amendment for verification was one of procedure and not of jurisdiction; that this irregularity in the verification did not entail the dismissal of the election petition; and that, therefore, a fortiori an election petition, which gave the particulars of corrupt practices and which had been properly verified but was not accompanied by an affidavit as required by the proviso to Section 83(1) could not be dismissed for want of an affidavit.

We have already expressed the view that an election petition cannot be dismissed if it is not accompanied by an affidavit as required by the proviso to Section 831. But we are unable to agree with the reasoning given in Chengalraya's case, AIR 1964 Andh Pra 164 (supra) for reaching this conclusion. It has already been pointed out by us how the provision with regard to verification contained in Section 83(1) (c) fails to serve the object with which the proviso was inserted, in the Act. It may be pointed out that the learned Judges of the Andhra Pradesh High Court accepted the contention of the respondent before; them that the addition of proviso to Section 83(1) by the amending Act of 1961 was "a purposeful addition". But the observations which they made for emphasizing the importance of the verification of an election petition under Section 83 (1) (c) show that in effect they regarded the proviso as purposeless.

19. In AIR 1963 Raj 157 the affidavit that was filed along with the election petition was defective in that it was not in the prescribed form. The Tribunal permitted the election petitioner to file a new affidavit in the prescribed form. The Rajasthan High Court held that it was not incumbent on the Tribunal to dismiss the petition for this defect and that by allowing the election petitioner to file a new affidavit the Tribunal did not permit him to make any new allegations which were not already contained in the petition. This case thus does not at all deal with the question as to the effect on the allegations of corrupt practices made in an election petition when the petition is not accompanied by an affidavit sworn before the prescribed authority. It may, however, be noted that in Rajasthan case it was observed that the presentation of an affidavit along with the election petition was not a mere formality. The question raised in that case was as regards the form of the affidavit and the Rajasthan High Court regarded the mistake in the form of the affidavit before them as immaterial when it substantially complied with the form prescribed. It was on this view that the Rajasthan High Court held that the order of the Tribunal permitting the election petitioner to file a new affidavit in the prescribed form did not prejudice the opposite party as the new affidavit did not make any new allegations which had not already been made before in the petition. The Rajasthan decision is, therefore, not of any assistance here.

20. For the foregoing reasons, our conclusion is that the requirement of the proviso to Section 83(1) of the Act that where the election petitioner alleges any corrupt practice the election petition shall be accompanied by an affidavit sworn before the authority prescribed, by rule 94-A to support the allegations of corrupt practice and the particulars thereof, is mandatory that there was no compliance with this requirement in the present case when the respondent No. 1 filed with the election petition an affidavit sworn before the Clerk of Court of the Court of the District Judge, Jabalpur; that the omission to comply with the proviso to Section 83(1) of the Act could not be cured by permitting the respondent No. 1 to file a fresh affidavit; and that the Tribunal erred in granting leave to the respondent No. 1 to file an affidavit in proper form. We are further of the opinion that the result of the respondent No. 1's failure to comply with the proviso is that the allegations made by him in the election petition about corrupt practices cannot be enquired into, and that the Tribunal has no jurisdiction to try any issue raised by the se allegations.

The question as to which of the averment made in the election petition constitute allegations of corrupt practices and which cannot be enquired into is a matter which the Tribunal must determine in the light of all that has been said above. Before leaving this case, we must observe that it is utterly incomprehensible to us as to how it was suggested on behalf of the respondent No. 1 that some of the statements contained in the petitioner's application dated 14th February 1964amounted to contempt of the Tribunal and how the Tribunal persuaded itself in regarding the suggestion as not without any foundation. We do not find any statement in the petitioner's application, dated 14th February 1964 which can be characterised as constituting contempt of the Tribunal. By that application the petitioner only drew the attention of the Tribunal to the fact that certain points raised by him remained to be decided and that they should be decided by the Tribunal. A party making an application to a Court or Tribunal praying that a certain, decision of it should be reviewed as a mistake had crept in the decision on some point or points or that some questions remain to be decided can in no sense be regarded as having committed contempt of the Court or Tribunal in making that application. In making the comments that it did on the petitioner's application, dated 14th February 1964, the learned Member of the Tribunal exhibited an injudicious sensitivity and did not bring a critical intelligence to bear upon the question whether the points, which the petitioner said had not be (sic) decided by the Tribunal, had been decided by if and if so, in what manner, which was in the end the main point for determination raised by the petitioner's application dated I4th February 1964.

21. The result is that this petition is allowed, the order dated 30th November 1963 granting to the respondent No. 1 permission to file a fresh affidavit, and the order dated 24th February 1964 are both quashed, and the Tribunal is directed to determine in the light of this decision the effect of the respondent No. 1's failure to file an affidavit as required by the proviso to Section 83(1) of the Act on the allegations of corrupt practices made by him in the election petition. The petitioner shall have costs of this application. Counsel's fee is fixed at Rs. 150/-. The outstanding amount of security deposit shall be refunded to the petitioner.

Dwarka Prasad Mishra v. Kamalnarain Sharma And Others

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments (Appellant)

Respondent No. 1's Arguments (Respondent)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Dwarka Prasad Mishra v. Kamalnarain Sharma And Others

Comments